Posted
by
Unknown Lameron Wednesday November 14, 2012 @01:06PM
from the slashdot-trademarks-news dept.

An anonymous reader writes with this bit of trademark absurdity from geek.com: "Ravensburger is a German gaming company that specializes in jigsaw puzzles, but has also expanded into other areas such as children's books and games. The company owns the trademark to a board game called 'Memory' and has demanded Apple stop offering apps that have the word 'memory' in their title or as a keyword associated with an app. It may seem ludicrous such a common word can be trademarked, but apparently this is a valid claim as Apple is now serving notices to app developers. The choice an infringing app developer has is to either rename their app or remove it from the App Store."

Yes, your garden looks very nice at first glance. But I'll stay out here, thanks.

Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this. And this is just a mild example of what they *could* do if they wanted.

Came here to say this too. Check "Allow Unknown Sources" in Settings, open.apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)

Came here to say this too. Check "Allow Unknown Sources" in Settings, open.apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)

AT&T used to not allow that, but once people started trying to download Amazon's app store and got a ton of flak over it. AT&T quickly gave people the ability to do so.

Came here to say this too. Check "Allow Unknown Sources" in Settings, open.apk, install app. Perfectly allowable within the default Android setup, and yes, this is the setup that 95% of carriers use. (I've heard of some carriers taking away the Unknown Sources checkbox, but to my knowledge it's very uncommon.)

AT&T used to not allow that, but once people started trying to download Amazon's app store and got a ton of flak over it. AT&T quickly gave people the ability to do so.

AT&T being the operative word.

The downside of an open system is that people can use it for evil. The upside of an open system is that if they do that, you simply dont buy from them.

You're right that you don't need root, per se, but there are a lot of devices out there with sideloading disabled [androidcentral.com]

AT&T was really the only carrier that did this, and they re-enabled the checkbox (which gives the user the choice) quite a while ago. I don't have AT&T, but Amazon had warnings on their app pages about AT&T, and I haven't seen those in nearly a year.

At this point, no Android device requires root to install an app, regardless of source.

And it's the fact they can that's what's the problem with the walled garden. If i'm a private company selling an app to you directly I can tell Ravensburger to go fuck themselves and if they want their trademark torn up they're welcome to take me to court. If i'm a developer selling through Apple or another walled garden, then who the hell am I supposed to appeal to? I could sue Ravensburger for damages, but in the mean time what do I do?

You appeal to the courts if you think their claim is spurious and if you win you resubmit your app. The procedure for fighting the claim is no different than if you weren't selling through someone's store and you were threatened with a lawsuit over a trademark claim against your product.

If I win I resubmit my app? Is that a serious response. What do I do in the mean time while i'm losing profit. The difference between your solution and a sane one is that in a sane world you're not automatically guilty and get to defend yourself in court before action is taken against you. The procedure may be the same (sort of), but the timing here is what matters.

A C&D is not a court order. I'm not obliged to comply. If I made, for example, a memory checker system tool for iOS and Ravensburger sent me a C&D I could tell them to go screw as they would have no case. Apple, on the other hand, doesn't give a fuck as to the threat's credibility and is only thinking about risk management... so there goes my app, or it gets renamed to something useless nobody will ever find.

They have to go to court to get such an injunction and you do have an opportunity to defend yourself. A judge may grant a preliminary injunction but that's risky for the plaintiff and are not that easy to get [wikipedia.org].

Appeal what? The claim isn't against the developers, its against Apple. The developers aren't being threatened with a lawsuit, they're having their app pulled because of a clause in the agreement they have with Apple.

The whole deal with trademarks is you HAVE to defend them. They can take you to court and you will lose, as long as they have a history of defending the trademark. Try branding your cooking app American Pumpkin Pie Lover Estate and see what happens to you.

Yes, but I very much doubt they have a history of defending the word "memory" in a product that does not compete with them, say... a "free memory" tool. If I had a game called memory, they might have a case. There are lots of other factors to consider depending on what your case might be. I am not a lawyer but I do have enough experience [citmedialaw.org] with trademark law to win a case, and i'm 99.9% sure that in this particular case, Ravensburger wouldn't stand a chance.

I've had that happen before. It's annoying, but not a huge deal. You simply find a new host, transfer your files and databases, and point your domain to the new nameservers. I've also had somebody try a trademark claim on a domain of mine. You get to defend against that (and I did, and I won). I'd wager doing that is a lot easier than trying to get Apple to change a decision they've made becuase of their risk management policies. It's simply not in their interests to judge whether legal claims have merit. They can't just get any old intern to do that. They have to pay legal staff, which doesn't come cheap.

But is Apple legally forced to restrict their customers from avoiding this restriction? No, the walled garden and "Apps only through OUR App store" is Apple's choice.

It is nice for the IP holders though. Millions of captive customers, penned in neatly by the shiny walls of the iOS lock-in. Apple rounds 'em up, brands 'em, and corrals 'em... every patent and trademark troll can pick 'em off and butcher 'em at leisure.

a better analogy from asking a retailer to remove an infringing product from their store shelves.

Only, with an iPhone, that is the ONLY store I can go to. The doors are locked and I can't leave. With an Android, I can just walk out of that store and go to any other store and get the product there (or even go directly to the company that makes it and get it from them).

The problem is that Apple is also blocking sales while the two parties "work it out". Which they may never will - for example, the "offending" party may well be in a different jurisdiction where the trademark simply doesn't apply, but it applies to Apple in the states.

And the reason why it is a problem is because the app author can't just work it out directly with his users. If you're out of the App Store, you don't have any official, supported channel for people to install your app, period. So, yes, this is entirely about the walled garden.

Exactly this. This has nothing to do with a walled garden. This exact same copyright claim could (and probably will) be brought against the Amazon, Android, Microsoft, etc. stores which have the same type of infringing apps.

Also this trademark is at least 30 years old. And it propably only applies to borad games. Propably only card games. If it has been registered abroad(as in not in Germany) is not known to me.

If we want to compile a list of trademarks for common words we could start with:
A is for Apple
and work our way across the alphabet until we reach
M is for Monopoly
make our way up to
W is for Windows

I will leave it as an exercise for the reader to fill in the gaps. But I guess you get my meaning.

The age of a trademark is irrelevant, as long as it is paid for and defended. The trademark also only applies to a specific area.
Its fine to name your concrete company "McDonald's Concrete" but a food outlet called "MacDonanld's Home Made Burgers" is going to get your ass sued.
Trademarks also have to be approved and can be disputed easily as well.

Copyrights, trademarks, and patents are three different things. How can we ever expect politicians to fix our IP system, when even many geeks seem incapable of understanding even the absolute basics?

Fix the IP system? Politicians, advertising, many corporations, and now you are actively confusing the public by grouping the 3 terms into "intellectual property." Of which there is no such thing. Owning ideas is impossible, outside of fiction and courtrooms.

Citizen Joe Average doesn't care. To him, all IP and related issues are grouped together and it doesn't matter if they're called copyright, trademarks, or patents. And thanks to persistent over-reach and abuse of them by megacorps, he almost certainly now believes they're all idiotic schemes, and he will honor them exactly as much as he needs to in order to stay away from jail and massive fines, and not one iota more. Megacorps have broken the idea of IP for the foreseeable future, and it looks like they're

1. Apple isn't banning the apps, they're telling the developers they have to rename them.2. This isn't some arbitrary decision by Apple (unlike some other cases), this is because another company owns the trademark to "memory" in the context of games and is threatening to sue Apple if they don't comply with the order to have the apps' names changed.

Do you know how many small developers this might impact? Each app may have hundreds or thousands of dollars in advertising, name brand awareness, web site names, artwork... etc. Apple should use its billions of dollars to squash this ridiculous claim. Its a word in a dictionary, not a proprietary trademark. This is Apple being a pussy.

And it's only a violation if you compete in the same field or there would be a potential for confusion. Nobody is going to confuse a "Memory" game with a "free memory" app, for example. I would think there are hundreds, if not thousands of apps in the app store that nobody would reasonably confuse with the (famous?) "Memory(tm)" game. I just checked in the app store. Take for example "battery memory system status monitor" would be affected. Would anybody ever confuse that with the "Memory(tm)" game, whatever that is?

Depends on how you read the article. The article says "In total, there are thought to be more than 50 games this trademark will force to change names", but it also says "demanded Apple stop offering apps that have the word ‘memory’ in their title or as a keyword associated with an app". There is no indication this is limited to games alone, just geek.com's note that there are 50 games in the app store with "memory" in the title.

Sure. But that has no relevance whatsoever, so I fail to see why you bothered to bring it up. Trademarks only apply within specific domains. Apple Inc. (formerly Apple Computer) and Apple Records were able to coexist for years since they were in different industries, yet they both had valid trademarks for the term Apple within their industries. It wasn't until Apple Inc. decided to get into music that things got really messy, since Apple Records had rights to the name in that space.

I could probably make a soda brand named Subway if I wanted to, but I couldn't make a restaurant with that name, since the name is already trademarked in that domain. Similarly, here, Memory is a trademarked name within the domain of games. While I could likely make a clothing brand named Memory, I can't make a game with that name, just as I can't make a tablet named Fire or an OS named Windows or Android. Just because I can make a product named Memory in a different domain does not mean that I have a right to make a product named Memory in the domain in which a trademark for that term applies.

If it were the other way around, do you think Apple would hesitate one second to the identical claim?And sure Apple has the money to buy laws. Good that money is the deciding factor for you, not who is right or wrong.

2. This isn't some arbitrary decision by Apple (unlike some other cases), this is because another company owns the trademark to "memory" in the context of games and is threatening to sue Apple if they don't comply with the order to have the apps' names changed.

Which doesn't change the fact that this could happen so easily only because the other company only had to squeeze one throat to get a shutdown for *all* apps.

Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this. And this is just a mild example of what they *could* do if they wanted.

Well, the developer (ANY developer, mind you) can get sued for trademark infringement, so even your "open access" rules can get curtailed. Yes, if you make a "memory" game, expect to receive some cease-and-desist soon, regardless if it's walled, garden, open-source, whatever.

And Apple has so far let users keep their "removed" apps. I think even iCloud keeps a copy if you happen to not have a backed up copy.

Nope, it's nothing to do with a walled garden (which actually doesn't affect users so much as developers since removed apps still can be used by existing uesrs). This affects *ALL* developers.

It does have to do with a walled garden. A company can make a possibly frivilous complaint againt the garden owner who can then kick you out, and you have no recourse. If it was not a walled garden and you could sell your app independently, the claimant would have to go after you directly, and you would have the opportunity to legally defend yourself.

Sometimes a central authority is a good thing. But no-fucking-body is telling me what software I can or can't download, or banning me from downloading certain titles over some stupid shit like this. And this is just a mild example of what they *could* do if they wanted.

Well, the developer (ANY developer, mind you) can get sued for trademark infringement, so even your "open access" rules can get curtailed.

This much is true...

Yes, if you make a "memory" game, expect to receive some cease-and-desist soon, regardless if it's walled, garden, open-source, whatever.

And Apple has so far let users keep their "removed" apps. I think even iCloud keeps a copy if you happen to not have a backed up copy.

Nope, it's nothing to do with a walled garden (which actually doesn't affect users so much as developers since removed apps still can be used by existing uesrs). This affects *ALL* developers.

... but you're missing an important point. The significance of the "walled garden" reference is this: if I am a developer of an application that uses the word "memory" in its title or as a keyword, but in a non-infringing way (and it's hard to imagine that every single possible use of the word "memory" infringes the trademark), then outside a walled garden, I have options: I may choose to capitulate to avoid a lawsuit, or I can choose to take my chances with the legal system and continue using the term (and, if I can get a good lawyer, I may well win). But Apple is not giving developers that choice - they can either remove the term "memory", or remove the app entirely.

I suspect that Ravensburger have taken action to protect their trademark, and are only likely concerned about apps that are similar to / might be confused with their product - and Apple are indeed probably liable if they are selling infringing products. But, rather than vet individual apps based on whether they infringe or not (which is time-consuming and error-prone), Apple have taken a decision to impose a blanket ban on the term - which, while I see the practical benefits from their point of view, is clearly detrimental to, say, people searching for an application to check what DIMMs might be compatible with some hardware they need to upgrade...

"It's harder for me to commit a crime so I don't like it" is the argument here. What's happening is there's a trademark claim, and people are being made to comply. It's no different than if you marketed an app called "Photoshop Pro" and Adobe shit all over your party, except people are so used to the concept of Tetris and, in this case, Memory that they find it bizarre and offensive that somebody actually owns these things. Somebody invented it, but all people see is that they can't remember when it was novel, so it must be free.

Trademark law is really strange. If you don't protect your trademark, you lose it. If Ravensberger makes an iOS app for the game of Memory, everyone searching for it will get all these clones, superior or inferior, by the same name. They'll play those and ignore Ravensberger's Memory. The market is then unmarketable. Thus Ravensberger has a strong desire to protect their trademark to Memory, since if they lose it and another market opens up and they want to capitalize on it then they can't because they can't defend their trademark because it has become generic. Thus they must petition to stop these things from using their trademark.

This is the same reason that Adobe doesn't like when someone claims they "used GIMP to photoshop" something: you did NOT photoshop that, Photoshop was not involved, stop saying these untrue things, you are creating brand confusion. It's fair game to say something is "like Photoshop," but not that it IS Photoshop or has been adjusted via Photoshop if Photoshop was not involved.

But all people want to see is, "Hey, how can you do that?" and they use weird arguments like "You' can't just trademark a generic word!" UPS has a trademark on the color Brown; both American Express and IBM have trademarks on the color Blue. Thing is UPS only has a trademark on using the color brown as a major marketing identifier for a shipping company: you cannot make a brown DHL, it has to be yellow or something. If FedEx reimaged to primarily earth tones, UPS would have a valid suit against them. If Chicago Suits took up the color brown as their major marketing factor--brown slacks, brown shoes, brown jackets, business and business casual wear--UPS has absolutely no standing to sue them because they're not a god damn shipping company and the trademark on Brown doesn't apply. Ravenberger has a trademark on a board game called Memory, and if you make a Memory toothbrush that doesn't reference the board game in any way then you're not infringing on their trade.

The Memory Game
That classic game of remembering is back in this awesome new iPhone app!

Apple: Please remove 'memory' from the title of your game or we will remove your game for you!

The Memorie Game
The Anglo-Normans are challenging your ability to remember in this awesome new iPhone app!

Apple: Don't be a smartass, you know what we mean. Please remove 'memorie' from the title of your game or we will remove your game for you!

The Memoria Game
Which cards had Marcus Aurelius beneath them and which cards had Marcus Annius Verus under them?! This classic challenging Latin game of remembering cards is in this awesome new iPhone app!

Apple: Goddamnit. Okay, no Latin root words of Memoria, okay? You'll be sued, we'll be sued, they own everything related to mem- and as preemptive warning, no 'mnemonic' shit either, okay? It's all owned by someone else!

The Apple Can Go Fuck Itself Game
Which company is making Apple its Intellectual Property bitch today? Try to find out in this classic game of "wait, what card was that again?"

While I remember the old memory game(vaguely), I wonder if the suit being brought in Germany was somewhat 'court shopping'? After all, the IOS market is global, not just German, and depending on the laws, 'Memory' might be too vague in many countries to be a valid trademark on it's own.

I mean, what about a game called 'The Memories of Lars Fibbonachi'? Would that be in violation? 'In Memory of X?', etc...

Foreign words are valid trademarks in all countries I've bothered to check, so that doesn't surprise me, at least for an international store like Apple's. Also, you *can* trademark a word to refer to this particular game. Nobody says you can't make a game that has you flip pictures and match them up as you remember where which one is. You just can't call it just 'Memory'. Come up with your own name, and you're golden. But of course then you can't mooch off their popularity by having people who look for 'Mem

Not really. They aren't just banning ones named "memory" if the summery is correct they are bring down the ban hammer on any with "memory" in the title. Besides just because it is trademarked in anothe country does not make it trademarked her where it is a common part of your vocabulary. than agains so is apple window and other generic terms that have been trademarked

Why are you assuming that they are card matching games? Or even games at all. 'Memory' is part of a iPhone, after all.

Memory, as a foreign word, is a perfectly reasonable trademark for a German board game.

The problem is, as an _English_ word that actually describes part of a computer, it's really insane to run around claiming that computer programs cannot use it in their name.

It's sorta like 'Ford' is a entirely reasonable trademark for cars...but then Ford enters a new market that makes devices to help cars float across rivers...no, they can't bring that trademark along and sue people who sell a 'fording device'.

The trademark makes sense in the context of German board games, it does not make sense in the context of international computer programs.

Using your recollection, the ability to hold in your mind certain facts, figures or concepts is a part of your consciousness. Recall is important, as is retention and awareness. Our app will help you to stop it with all the forgetfulness. Buy it today so you can remember tomorrow.

I was under the impression that at least in some major markets, the description (not the title) was allowed to say "Compare to Memory by Ravensburger", just as makers of generic APAP preparations were allowed to say "Compare to Tylenol by McNeil".

Companies do not own words because they used them first. It's one thing to outright steal the name of a product. It's another thing to claim you own every word in that product's name.

If you name your product with a word that describes some important aspect of your product, it will not get a trademark. Want to call your car company "Emu Cars"? You can get a trademark. If you want to call your car company "Wheels Cars"? You cannot go after people for using the world "Wheels" in their ads and descriptions.

Therefore, there is no way you can get a trademark on your graphical windowing system called "Windows".

Does this apply to all apps or just games? If it's just games then the claim may be indeed be legitimate (or not), but if it's all apps then it's certainly a case of overreaching by the trademark holder (or else an overreaction by Apple).

The most ridiculous element is the ban on the use of "memory" as a keyword. Trademark law was never intended to forbid others from naming competitors' products or from using trademarked words in their descriptive sense ("this game will enhance your memory and give you super-strength!").

You couldn't trademark a word of the English language, in and of itself - it would't hold up in US courts. You trademark a logo, an artistically stylized version of the word. The mere word itself is off limits to IP hucksters. Then again, I guess I doubt anyone else could come up with a new game and call it, "Monopoly" (how fitting) or "Sorry", or "Uno", or whatever.. so.. I dunno.. well, IANAL after all.

Which means, no one but the group that owns the rights to the IP of aforementioned board game is allowed, legally, to create a memory based board game and name it 'Memory.'

It does not mean that group owns all instances of the word memory.

It does not mean that group owns all instances of memory based board games.

This is simple, basic stuff.

WTF, Apple Legal? You're good enough at what you do to get a judgement against one of your competitors/suppliers for using goddamn rounded corners, but not good enough to point out something that's obvious to most 4th graders?

We are among the developers who have had to change a memory game on the app store due to this widespread trademark infringement claim.Generics only apply to trademark law in the USA. We were bitter about the change - the use of the phrase "memory game" -isn't- trademarked AFAIK, and it seems trite to look at a single word embedded within a much longer title.

Anyhow, our feeling was that this entire fiasco will probably backfire with bad press. We really wanted to change the game only in those territories which are trademarked, but that's not so easy with the current App store model.

In the US, Hasbro holds the trademark for "Memory" as applied to card matching games. So what happens if Hasbro decides to develop a "Memory" app for the iTunes store? (They already have one for Simon.) Who would Apple decide should win that battle?

The EU is doomed to a steady slide into bureaucratic sludge, making it uncompetitive and irrelevant. Great for the U.S., where innovation still thrives (despite Nathan Myhrvold's defense of patent trolling [engadget.com] and other intellectual property extorts).

A similar thing happened a few years ago with apps that displayed photos with white borders that were thicker along one edge. Apparently Polaroid have a design patent on that and complained to Apple. End result: apps can be rejected/removed from the App Store if they display a photo with a white border that is thicker along one side.

Isn't there something about trademarks and common words not being eligible? Microsoft *almost* lost their Lindows case in a big way because of that. Anyone remember this case? Lindows was being sued by Microsoft, and Lindows was putting forth the argument that Microsoft is not entitled to the name "Windows" as a trademark. Microsoft paid Lindows to change their name and to dropped the case entirely.

That said, Apple is not a court. They are a company which is exposed to legal action by the holder of the trademark "Memory." Rather than take on that challenge for the greater good (something which I am sure Google would do) Apple has decided in favor of avoiding additional legal problems. It is their right to do so.

So, what should these small apps people do? Well, turns out, there is very little they can do. They can (a) license the use of the name Memory for their game (not something I imagine would be profitabe or even allowed) or (b) file a pre-emptive suit for the right to use the name or possibly (c) file a re-examination request with the trademark offices to see if it can get revoked. Of these, I would push in favor of (c) but even then, if successful, unless it were a big news story, Apple would likely ignore your assertion that "they no longer have the rights to that name, so please allow my app into your store."

at the time, the music and computer companies sold such vastly different products that they were each allowed to use the names separately. they also agreed not to enter each others space. Hello, itunes!

Apple paid enormous sums to settle the claims against the music company. Unless the game is a blatant rip off of the trademarked version, Apple should protect companies that have "memory" related apps.. there must be thousands.

Probably not:1. This isn't a patent, it's a trademark.2. Trademarks are allowed to be common names so long as the name doesn't directly relate to the product being sold. For instance, "apple" can be trademarked for computing equipment, but not for fruit.

However, if the name "Memory" appears in any book of common card games as an alternate name of the game "Concentration" prior to the introduction of Hasbro's "Memory", then they're likely to be in trouble.

Patent law defines "not novel", or anticipated by the prior art, as a reason for rejecting a patent application. Trademarks are not patents, as you point out, but that doesn't necessarily mean that trademark law lacks anything remotely corresponding to "not novel" inventions. Instead, a mark can be "merely descriptive" [bitlaw.com].